Protech Gps Pty Ltd

[2024] FWCA 1488

[2024] FWCA 1488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a multi-enterprise agreement

Protech Gps Pty Ltd

(AG2024/1140)

COAL EXPORT TERMINAL AGREEMENT 2023

Coal export terminals
COMMISSIONER DURHAM	BRISBANE, 22 APRIL 2024

Application for approval of the Coal Export Terminal Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Coal Export Terminal Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Protech Gps Pty Ltd (the Applicant). The Agreement is a multi-enterprise agreement.

1. The application was required to be filed within 14 days after the agreement was made on 24 January 2024 in accordance with s.185(3) of the Act. Though it was initially filed in time, due to issues encountered in that initial application, the Applicant was required to file a fresh application on 9 April 2024. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

1. As touched on above, it was confirmed in the initial application that there were two employers to be covered by this Agreement, however the second employer did not have any employees engaged which consequently raised issues with respect to the issuance of the notice of employee representation rights (NERR), employee voting and whether there was genuine agreement. On 18 April 2024, the Applicant filed an amended version of the Agreement seeking to amend the Agreement by removing the reference to the second employer as follows:

“Clause 2.1.1 – edit to remove ‘and Protech’s Group Training Organisation registered as Protech Personnel (Northern Region) Pty Ltd (ABN 36 145 085 070)’.

Clause 5 – “Company” - edit to remove ‘and Protech’s Group Training Organisation registered as Protech Personnel (NQ) Pty Ltd (ABN 36 145 085 070)’.”

The Applicant submitted in the previous application that Protech Northern Region Pty Ltd (an entity of the Protech Group) would become a party to the Agreement to support Protech Group in offering apprenticeship and/or traineeship opportunities in the coal export terminal industry in the future as it is a Group Training Organisation. However, at the time the Agreement was made, there were no employees in the coal export terminal industry who were, or who could reasonably be considered to be covered by the Agreement engaged by Protech Northern Region Pty Ltd.

1. Section 184 of the Act has the effect that if a multi-enterprise agreement is made and the agreement was not approved by the employees of all of the employers that made the application, then the bargaining representative must vary the agreement so that the agreement is only expressed to cover each employer whose employees approved the agreement. As no employees of Protech Northern Region Pty Ltd have approved the agreement, the Applicant has subsequently modified the Agreement such that all references to the second employer have been removed in accordance with s.184(2), (3) and (4) of the Act.

1. Noting there were no objections to the amendment, I am subsequently satisfied that the variation should be made and that it is appropriate to do so pursuant to s.184 of the Act.

1. As a result of the above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) lodged respective Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU and ETU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

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